Thank you sir for sharing this comprehensive list of suggestions. Is there any spesific reason you want low vision be deleted and mildly blind be introduced? And I'm eager to know how government while drafting existing PWD Act put a cap on 40 per cent disability to avail benefits from the Act. Why not 35 or 45? We seriously need to unearth politics behind drafting of laws in closed doors.
On 5/9/14, Asudani, Rajesh <[email protected]> wrote: > Suggestions given by Rajesh Asudani for disability law four years ago > Please note these are based on then proposed amendments to existing PWD. > Since then, even though the new act has been drafted and is in the pipeline, > most of the suggestions have not been incorporated... > > 1. > Definition > the definition of disability should Be > aligned to UNCRPD, criteria should be laid down in addition to enumerating > categories. Criteria may include: impairments,-reversible-irreversible or > imputed in interaction with attitudinal/environmental barriers. > enumeration of categories should be inclusive and > confined to section 2, and not scattered all over the > act, learning disabled and deaf-blind be also defined > in section 2 itself. Mental illness should be removed from > categories of disability as learning disabled have been > defined and disease is not equated with disability and > also because act contains little to affect mentally ill. > Rational quantification-into mild and severe > disability be done and percentage wise quantification > be done away with. > Category of Low vision be deemed as mildly blind, > and care should be taken to avoid cases where a > person would medically fall into neither blind nor > Sighted. > 2 > Mainstreaming > disability > Implementing bodies be made more representative of > disabled. All constitutional bodies from Parliament to > Panchayat to have at least one disabled > representative. Articles 15 & 16 of Constitution be > amended to Prohibit discrimination on basis of > disability per se. Disability budgeting on lines of > gender budgeting be implemented. > Art. 17 of constitution be amended to wipe practice > of disability exclusion. > 3 > Strong Statutes: > > Prevention of atrocities act for disabled On the lines > of SC atrocity prevention act, be enacted > Abuse, verbal or non-verbal, in the name of disability be declared an > offence. > > 4 > Right to Life: > > Cost of all corrective steps for disability > Like Keratoplasty cochlear implants > Be born by government Cornea after death > Be declared "National resource" > Free from any private encumbrance. > > 5 > Inclusive Education > > legitimate assistance to special schools Fostering > inclusive educational ambience at the same time should be the goal. > Training all teachers to teach disabled children as > well should be give in regular training programmes. Giving disability > scholarships in addition to, and not in lieu of, other benefits should be > prescribed. Making study material available in suitable alternative format > should be made mandatory. > Reasonable accommodation be provided in > education. > Section about professional and higher education > should include reimbursement of cost of course to > disabled. Modification proposed in evaluation > scheme are to be clear and should not give negative signals. > Modification in curriculum or providing substitute > questions is enough. Section on education should be comprehensive and should > be properly placed in chapter on education. extending reservation to all > recognized institutes should be given top priority however, provisions > about > reasonable accommodation in education should also > be extended to all recognized institutions. > > 6 > Exercising legal > capacity-scribe > A uniform scribe policy is the need of the hour. > Discretion of candidate to bring the scribe or accept > that provided is to be given due recognition and the arbitrary rules framed > by authorities or even examination incharges are not warranted. > Preconditions like juniority if from same streem be > imposed. Competence to be ensured when scribe > requested. No arbitrary conditions/changes/denials of > scribes justified. Perhaps the only condition on the scribe should be that > she/he should not be eligible to appear for exactly the same exam at the > time she/he is writing as scribe. > Interpreters to hearing disabled to be provided > wherever required. > 7 > Govt. schemes > Disability be factored in while making any scheme. > All existing government schemes be evaluated from > disability perspective continuously. > Disability audit of schemes must be made mandatory. > Special schemes for disabled US43 of PWD act be > framed and implemented. > > 8 > Quantum of > reservation > > In addition to organized services, reservation in aided > and semi-governmental sector be specifically > mentioned. Splitting percentage for blind/low vision > as was proposed in amendments is welcome, it be done for all other > disabilities in > terms of mild and severe. Low vision be deemed to be mild visual disability. > Calculation of total > vacancies on basis of all entry point posts in all four > classes of services be explicitly mentioned. Providing > reservation for disabilities not mentioned in section 33, as is proposed in > amendments, by government > should be made over and above 3% for disabilities > mentioned in section 33. However, such a provision be used very sparingly > when a disability comes into existence by interpretation of criteria by > judiciary etc. > Quantum of reservation should Be enhanced to 5% > /6% To reflect the actual proportion of disabled in > population. > > 9 > Categorization > Different categories of severely and mildly disabled > for at least reservation be carved out. > And reservation be apportioned in them accordingly. > 10 > Detrimental actions of > state governments > Rationale of Disability legislation falling under > concurrent list, so Central law prevailing unless state > law assented to, or PWD Act enacted Under article > 253, be employed to negate varied state > interpretations harmful to disabled and uniformity be > brought in implementation of disability legislation. > > Any move by state governments which takes away from the provisions of the > act should be explicitly prohibited. The provision is necessary in wake of > some states like maharashtra carving out arbitrary additional categories of > disabilities like Partially sighted, in addition to those mentioned in the > disabilities act, and even not identifying posts for totally blind which are > explicitly identified for them by central government. > > 11 > Reservation for > disabled > 3% or more as prescribed of total cadre strength in all classes of > government establishments including aided > establishments and semi-government sector has to be the ultimate > goal. 3% of vacancies occurring at a time is the > practical step to achieve the goal. Non- > implementation of reservation provision for long may > warrant > Special recruitment drives for disabled utilizing > available vacancies in excess of 3%. > Differentiation should be made between Relaxed > standards, like minimum qualifying/cut off marks, > relaxation in age limit, and > Reasonable accommodations, like taking scribe > waiver in fee, extra time etc. only those should be counted against reserved > vacancies who availed relaxed standards, or have not found place in vertical > lists. those finding > place in vertical list/open competition without relaxed > standards should not be counted against reserved vacancies. > > 12 > Transfer and > promotion > It is High time to give statutory backing to non- > transferability provisions of disabled employees except on request. Posting > in or near native place or requested centre exist only in government GRs, > they be sanctioned by law. Reservation in promotion > Reservation in promotion on lines of SC a legitimate demand. Extending zone > of consideration duly warranted. Intervening posts, if > unidentified, should be deemed to be identified for > effecting promotion Statutory backing required. > > 13 > Reasonable > accommodation/non- > handicapping > environment > Should be defined to include appropriate > modifications in structures, procedures and > environments to maximize functionality of disabled, > Warranted by UNCRPD and Natural justice. > Should not be fettered by: Economic capacity > development, or Reasonable time frame. > > 14 > No clubbing together > of disabilities > Clubbing together of disabilities is A harmful but omnipresent practice. > Even UNCRPD commits it. Each disability requires > unique measures, Apart from general principles > which may be common. > So, disabilities ought to be grouped under sensory viz: blindness, deafness, > etc., physical viz: orthopedically disabled, etc. Intellectual viz: learning > disabilities, and neurological and brain damage/impairment like mental > retardation etc. Psychological or mental conditions should not qualify as > disabilities. Such grouping would facilitate targeting certain facilities at > certain groups and would foster a general perception which does not club all > disabilities and does not view them as a homogenous group. Instead of using > the words like persons with disabilities while enunciating certain > provisions, the specific group words like xxx provision is meant for sensory > disabled, may be used. > > 15 > Optional protocol > Optional protocol to the convention be immediately > adopted by India > 16 > Enforcement > machinery > Disability forum on the lines of consumer dispute > redressal fora a should be set up to resolve cases under > disability act. CCPD and commissioners should only > coordinate administrative efforts and oversee > implementation of act and awards. > CCPD/Commissioners should preferably be person > with disability, must possess rehabilitation > experience. > 17 > Enforcement > machinery > Such disability fora be invested with full powers of > civil court including initiating contempt proceedings > for non-compliance of its orders. If suit is brought in HC for non > compliance of disability forum order, the HC should be bound to issue > enterim enforcement decree before deciding the petition on merits. Very > non-enforcement of disability forum order should give rise to negative > presumption against the defaulter and the onus to prove that the order is > erroneous should be on the defaulting institution and not upon the disabled > litigant should not have to again prove his right in HC. > 18 > Stringent penalties > section 53A proposed in amendments is limited in scope and does not lay > down procedure or authorities to impose said > penalties. In addition to this, Strong monetary > penalties be prescribed in cases of violations of > provisions of disability law: ex. Section 33, Not > reserving at least 3% of advertised posts, > discriminating on the basis of disability, harassment > of disabled, etc. > Disability disputes redressal forum should have powers to > impose such penalties and recover them as well, in addition to awarding > specific relief or compensation to disabled litigants. > 19 > Fake certificates > Issuing fake disability certificates or Making use of > fake disability certificates be declared a criminal > offence warranting exemplary punishment in addition > to forfeiting any benefit like job etc. so obtained. > 20 > Universal disability audit > Audit of government funds including grants to All > NGOs and all other expenditure should include > details of expenditure for persons with disabilities, as > they are one of the weakest classes in society and > every activity touches them. > 21 > Disability portrayal > Derogatory portrayal of disability be made ground of > censorship and film certification board should have a > disabled member on it. > 22 > Accessibility > The time limit for making transport/road/built > environment accessible should be reduced from > 31/12/2017 as proposed in amendments, to 31/12/2012. Introduction of > sections > 46A, 46B and 48(2) in amendments, is welcome, but their non- > observance should be made a ground for action and > monitory penalities on government, apart from > specific relief being awarded. The sections should > also provide for live assistance at public places > frequented by public. > 23 > Right to life > Eradicating disability through medical measures, technological > measures and > through appropriate modifications > in structures > and procedures should be viewed as integral part > of right to > life and primary responsibility > of > government > and state. > > 24 > Situations of risk and humanitarian emergencies > Statute should provide for all necessary measures to > ensure the protection and safety of persons with > disabilities in situations of risk, including situations > of armed conflict, humanitarian emergencies and the > occurrence of natural disasters. > 25 > Equal recognition before the law > Explicit enunciation of persons with disabilities as > fully competent legal persons is the need of the hour. provision of support > with effective and appropriate safeguards wherever > called for, for exercising legal capacity be made. Articles 15 and 16 of > the Constitution of India be amended to include "Disability" as a prohibited > ground of discrimination. > 26 > Financial transactions > Government should ensure the equal right of persons with > disabilities to own or inherit property, to control their > own financial affairs and to have equal access to bank > loans, mortgages and other forms of financial credit, > and shall ensure that persons with disabilities are not > arbitrarily deprived of their property. > 27 > Free legal aid > Costs to be essentially awarded whenever a disabled > successfully sues for violation of rights, free legal aid > to be mandatorily provided for every litigation under > disability law. > 28 > Liberty > Government should ensure that persons with > disabilities Are not deprived of their liberty > unlawfully or arbitrarily, and that any deprivation of > liberty is in conformity with the law, and that the > existence of a disability shall in no case justify a > deprivation of liberty. > 29 > Freedom from degrading treatment and torture > Statute should provide that: No one shall be subjected > to torture or to cruel, inhuman or degrading treatment > or punishment. In particular, no one shall be > subjected without his or her free consent to medical > or scientific experimentation. > 30 > Exploitation abuse and violence > Articles 23 and 24 of the constitution be suitably > amended to prevent exploitation violence and abuse > on account of disability or resulting in disability. > 31 > Living independently and being included in > the community > All the infrastructure including houses, whether built > by government or private parties to be fully > accessible, and government to ensure that: (a) > Persons with disabilities have the opportunity > to choose their place of residence and where and with > whom they live on an equal basis with others and are > not obliged to live in a particular living arrangement; > (b) Persons with disabilities have access > to a range of in-home, residential and other > community support services, including personal > assistance necessary to support living and inclusion > in the community, and to prevent isolation or > segregation from the community; > (c) Community services and facilities for > the general population are available on an equal basis > to persons with disabilities and are responsive to their > needs. > 32 > Technological aids > All technological assistive devices including mobility > aids, reading devices, softwares vision or other > sensory enhancement devices be blanketly exempted > from import duty and other levies. Government > should bear the full cost of such devices or highly > subsidize them as alleviation of disability by > improving the impaired sense, or limb falls under > right to life. > 33 > Freedom of expression and > information > It includes for disabled use of accessible modes and > so, government should: a) Provide information > intended for the general public to persons with > disabilities in accessible formats and technologies > appropriate to different kinds of disabilities in a > timely manner and without additional cost; > (b) Accept and facilitate the use of sign > languages, Braille, augmentative and alternative > communication, and all other accessible means, > modes and formats of communication of their choice > by persons with disabilities in official interactions; > (c) Urge private entities that provide > services to the general public, including through the > Internet, to provide information and services in > accessible and usable formats for persons with > disabilities; > (d) Encourage the mass media, including > providers of information through the Internet, to > make their services accessible to persons with > disabilities; > > 34 > Health > Government should: Provide those health services > needed by persons with disabilities specifically > because of their disabilities, including early > identification and intervention as appropriate, and > services designed to minimize and prevent further > disabilities, including among children and older > persons; Provide these health services as close as > possible to people's own communities, including in > rural areas; Require health professionals to provide > care of the same quality to persons with disabilities as > to others, including on the basis of free and informed > consent by, inter alia, raising awareness of the human > rights, dignity, autonomy and needs of persons with > disabilities through training and the promulgation of > ethical standards for public and private health care; > Prohibit discrimination against persons with > disabilities in the provision of health insurance, and > life insurance to be provided in a fair and reasonable > manner; declare discriminatory denial of health care > or health services or food and fluids on the basis of > disability a punishable offence. Make issue of > disability certificate a non-cumbursome and efficient > and fool-proof process > 35 > State activities > All the state activities including elections be made > accessible by adopting appropriate formats and > technology > 36 > Data collection > All data collection exercises including census, > surveys of general nature, should invariably include > persons with disability in addition to specific > disability surveys undertaken from time to time. > 37 > No negative presumption > No negative, harmful, exclusionary or discriminatory > presumption be drawn or denial be affected on the > basis of disability in respect of rights, amenities or > facilities offered to public at large or citizens and any > exclusion of the disabled there from not duly > supported by law be deemed an penal offence. > 38 > Disability records > Disabilities records and certificates be accepted > throughout nation, even if issued by one state as they > should be declared as records under article 261 of > constitution and full faith and credit clause be > applicable to them. > 39 > Nomenclature > Uniform nomenclature recognized by disability > legislation be followed while mentioning/referring to > disabled persons in state proceedings/transactions/laws etc. > 40 > Special measures to compensate disability > Any and all special measures to compensate > disability ex. Making books accessible by converting > them into digital format/specialized format, providing > human assistance, equipments, etc. be deemed as > equalizing measures and form the part of right to > equality under article 14 of the constitution. > 41 > Guiding principles > This copy and paste exercise from UNCRPD is > welcome, nonetheless, concrete steps to actualize > these principles into enacted law and implemented > action be thought out. > 42 > Rehabilitation > The chapter is welcome, but it is too vague. Merely > schemes for providing aids and appliances are not > enough. Blanket exemption from import and other > duties to appliances purchased by NGOs and also > individuals is called for. > 43 > Incentives to employers > Substitution of "May" in place of "shall" makes > section recommendatory and non binding. > Meaningful incentives like tax exemptions etc. have > mandatorily to be provided to private sector to > achieve inclusion of disabled in employment. > 44 > Health care and social security > A new chapter and not a subsection is required for > healthcare provisions. Location matters as courts are > prone to absurd interpretations. Here, section 31B > may imply linkage with education. For providing free > healthcare to disabled, earning limit has to be higher > than general poverty line. Specific health care > required for correcting disability or arising out of > disability should be provided free/affordably to > disabled. > The words, "within economic capacity and > development" be removed from pension provisions. > > 45 > Awareness raising > Law about Prevention of atttrocities on basis of > disability providing penal offences is the need of the > hour. Arbitrary and unjustified denial of disability > specific rights and general rights to disabled should > be an offence. > 46 > recreation > The rider "within the limits of their economic > capacity and development" must be deleted. > 47 > Central and state level monitoring > Apart from changing nomenclature, these monitoring > mechanisms be made accountable for implementation > of the act, collectively. While nominating nine > persons with disabilities on Central and state advisory > board, phrase, as far as practicable, be employed > only in respect of mentally retarded, and all other > disabilities be represented essentially by persons > having that disability. Nine and not five, persons with > disabilities, representing all disabilities in a single > nomination period instead of two, be nominated on > central and state coordination and monitoring > committee, and phrase "as far as practicable" be > restricted to mentally retarded. > 48 > District monitoring > Nomination of nine persons with disabilities on > district level committee should be compulsory and > not to be diluted with representatives of NGOs who > may be non-disabled. The phrase: as far as > practicable, be restricted to mentally retarded and all > other disabilities be represented by persons having > such disabvilities. > 49 > CCPD and Commissioners > In qualifications for Chief commissioners/commissioners, she/he should, > preferably be a person with disabilities, should be inserted. Proposed > Section 59(2) and 62(2) must > immediately be deleted. Recommendation of > CCPD/commissioners should be made binding, and if > a party is not willing to accept it, they should be > appealed in appropriate fora. Alternatively, > CCPD/Commissioners be made purely administrative > bodies coordinating efforts and overseeing > implementation of the act, and disability dispute > resolution forum on the lines of Consumer dispute > resolution forum and state and national commission > be constituted. > 50 > Recognition of institutions for persons with disabilities > Only institutions providing residential or educational facilities should be > asked to seek a separate recognition under PWD act. Otherwise registration > in societies' registration act or any other law dealing with NGOs should > suffice. While making the recognition mandatory, conditions and stipulations > should be reasonable as to be practicable enough for compliance. > > 51 > National fund for persons with > disabilities > Five members nominated by central government to > represent different disabilities on the governing body > of the fund under section 68D {1(viii)} must be > persons with disabilities themselves. Uses of the fund > be prescribed in greater detail. All additional > expenses in securing rights to persons with > disabilities under disability law, like reasonable > accommodation, be made legitimate uses of fund. > 52 > Women and children with disability > Adequate provisions to address double vulnerability > of women and children with disabilities on the lines > of UNCRPD articles 6 and 7 be enacted. Example: > they may be given priorities in all schemes meant for > disabled. Example: Higher sentence be prescribed for > offences against women with disabilities like rape, > domestic violence, extracting child labour from > disabled children etc. > > > With thanks and regards > > > > (Rajesh Asudani) > Assistant General Manager > Reserve Bank of India > Nagpur > > (In youth you want things, and then in middle-age you want to want them.) > > > ________________________________ > Caution: The Reserve Bank of India never sends mails, smses or makes calls > asking for personal information such as your bank account details, > passwords, etc. It never keeps or offers funds to anyone. Please do not > respond in any manner to such offers, however official or attractive they > may look. > > Notice: This email and any files transmitted with it are confidential and > intended solely for the use of the individual or entity to whom they are > addressed. 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